Citation Nr: 1433564
Decision Date: 07/28/14 Archive Date: 08/04/14
DOCKET NO. 09-07 640 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUES
1. Entitlement to service connection for a heart murmur.
2. Entitlement to service connection for a liver disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo
INTRODUCTION
The Veteran served on active duty from November 1996 to September 2000.
This appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), wherein the RO, in pertinent part, denied the Veteran's request to reopen previously denied claims for service connection for a heart murmur and liver disorder.
In a November 2011 decision, the Board, in part, reopened the claims for service connection for a heart murmur and a liver disorder, and remanded the reopened claims for further development and consideration.
A hearing before a decision review officer (DRO) at the RO was conducted in September 2009.
Medical evidence concerning a psychiatric disorder has been submitted since the last rating decision on that issue. Such matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The Veteran's heart murmur arises from an anterior septal aneurysm that is a congenital defect; there is no competent evidence showing current heart disease or any heart disability related to service.
2. The probative evidence of record indicates the Veteran's current fatty liver condition is not related to service.
CONCLUSIONS OF LAW
1. The criteria for establishing service connection for a heart murmur have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.311 (2013).
2. The criteria for service connection for a liver disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). Compliant VCAA notice was provided in an October 2007 letter. Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
Concerning the duty to assist, VA has obtained service treatment records (STRs), assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions, and afforded the appellant the opportunity for a hearing. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.
The Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the DRO identified the issues to the Veteran, and relevant testimony concerning events in service, treatment history, and symptomatology was elicited. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.
The Board remanded the claim in November 2011 to obtain additional treatment records and schedule the Veteran for an examination. Treatment records were requested, and a VA examination was conducted. The agency of original jurisdiction has substantially complied with the November 2011 remand directive such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Stegall v. West, 11 Vet. App. 268 (1998).
Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal.
II. Analysis
The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).
The Board notes that the Veteran alleges that his heart murmur and liver disorder are due to exposure to ionizing radiation in service. The Veteran served aboard the USS Theodore Roosevelt (CVN 10), a nuclear-powered aircraft carrier, and was exposed to ionizing radiation. The Veteran's STRs contain a Record of Occupational Exposure to Ionizing Radiation in which it was noted that he was exposed to a total lifetime effective dose of 0.120 Roentgen Equivalent Man (rem). On separation examination in August 2000, it was noted that the Veteran received 3 rem per quarter and 5 rem per year.
However, neither of the Veteran's claimed conditions are disabilities associated with radiation exposure for purposes of presumptive service connection under 38 C.F.R. § 3.309(d). In this regard, diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). Thus, this provision is not applicable in this case.
Additionally, a veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease
and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-malignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). Again, neither a heart murmur nor fatty liver are radiogenic diseases, and there is no competent evidence of record suggesting that such conditions are due to ionizing radiation exposure. Thus, additional development under 38 C.F.R. § 3.311 is not warranted for those conditions.
The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Board will proceed to adjudicate the claims on a direct basis.
Heart Murmur
A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2013).
Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2013). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. Such a disease, by its very nature, preexists a claimant's military service.
On service entrance examination in July 1996, the Veteran's heart examination was normal. In November 1996, the month he entered service, the Veteran underwent a cardiac consultation. He stated that he saw a physician at age 18 and was told he had a murmur. However, he was referred to a cardiologist who told him he did not have a murmur. Cardiac examination was normal. In December 1996, a systolic ejection murmur (SEM) was diagnosed subsequent to an electrocardiogram (EKG). In April 1997, the Veteran underwent an examination because of possible exposure to ionizing radiation. A SEM was again noted. The Veteran related that he had a heart murmur as a child. The examiner noted that the heart murmur produced no symptoms.
Post-service treatment records note that clinicians have continued to report that the Veteran has a systolic heart murmur and have done cardiac workups for chest pain. A March 2003 echocardiogram cardiogram study noted a possible intra-atrial septal aneurysm. A May 2003 general medical examination diagnosed a functional heart murmur with no functional impairment.
In his September 2009 hearing before a DRO, the Veteran stated that a doctor told him that an anthrax vaccine during service or radiation exposure during service might have caused his heart murmur. He also reported that he sometimes experienced tightness in the chest that was not related to exertion.
A VA examination was conducted in December 2011. The diagnosis was atrial septal aneurysm causing a murmur. The examiner stated that the Veteran's atrial septal aneurysm is a congenital defect that was not permanently aggravated by service or caused by service. The examiner stated the murmur is a result of the atrial septal aneurysm since the cardiac echo has shown that his heart valves are normal with normal ejection fraction. The examiner stated the Veteran had no functional impairment at this time. The examiner also noted that atrial septal aneurysm is the second most common heart lesion in adults, and cited to several treatises to support the opinion. No heart disease or other heart disability was diagnosed.
Although not noted upon entrance examination about four months prior to entry into service, a functional systolic cardiac murmur was noted the same month he entered service. The Board attaches great probative weight to the conclusion of the December 2011 VA examiner that the Veteran's heart murmur was the result of a congenital defect that was not aggravated by service. The VA examiner reviewed the claims file and the Veteran's medical records and was apprised of the medical history. After examination and review, the examiner provided a definite opinion supported by a reasoned rationale that included citation to medical treatises. As such, the opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).
The evidence in this case indicates the Veteran's claimed heart murmur results from a congenital heart defect diagnosed as atrial septal aneurysm and the presumption of soundness does not apply. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009 (stating that "[t]he presumption of soundness does not apply to congenital defects"). Moreover, congenital defects are not considered disabilities for VA compensation purposes.
The Veteran has not been shown to suffer from heart disease, and the only opinion addressing the relationship between his heart murmur and service is against the claim. Indeed, the fact that the Veteran's heart murmur continues to be nondisabling, as was found in service, supports the conclusion that the condition is a congenital defect as identified by the VA examiner, rather than congenital disease.
To the extent that the Veteran himself believes that his heart murmur was initially incurred in service or is related to immunizations or ionizing radiation exposure in service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Accordingly, his opinion as to the diagnosis and etiology of his claimed heart murmur is not competent medical evidence, as such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative medical evidence demonstrates that the Veteran's heart murmur results from a congenital defect that was not caused or aggravated by service. Such evidence is of greater probative value than the Veteran's lay contentions.
Given the above, the Board finds that the preponderance of the evidence is against the claim and service connection for a heart murmur is denied.
In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
Liver Disorder
The Veteran contends that he has a liver problem related to radiation exposure and immunizations given during service.
The Veteran's STRs are negative for any findings, complaints or treatment of a liver disorder. The records do note that he received multiple vaccinations in service, including two hepatitis A immunizations.
On VA examination in May 2003, the Veteran noted that liver function tests were abnormal during a work examination. The examiner reported that the results of more recent liver function tests were normal. The diagnosis was liver function tests corrected to normal between December and April 2003, with no functional impairment.
VA outpatient treatment notes reflect that in July 2008 liver function tests were normal. In the September 2009 RO hearing, the Veteran reported having had an abnormal liver function test. During VA primary care in September 2009, it was noted that the Veteran had abnormal liver function tests and that testing was positive for hepatitis A antibody.
A VA examination was conducted in December 2011. The diagnosis was fatty
liver (steatohepatitis). The examiner noted the Veteran's medical history that a VA ultrasound found a fatty liver secondary to history of alcohol abuse and obesity. The Veteran gave up drinking, went on a low fat diet, and was provided medication for the condition. The Veteran was currently without symptomatology. The examiner also noted that the Veteran had a cleared positive hepatitis A test. The examiner stated that the Veteran's fatty liver was likely related to alcohol abuse and obesity, and not likely related to service. The examiner also noted that the Veteran's prior positive hepatitis A has no bearing on this condition and was likely related to prior exposure or vaccination.
The Board attaches great probative weight to the conclusion of the December 2011 VA examiner that the Veteran's current liver condition was not related to service. The VA examiner reviewed the claims file and the Veteran's medical records and was apprised of the medical history. After examination and review, the examiner provided a definite opinion supported by a reasoned rationale. See Nieves-Rodriguez, supra. As such, the opinion is highly probative. There are no contrary medical opinions of record.
The Veteran has had a positive hepatitis A test, attributed to vaccinations. However, such is a laboratory finding only, and there is no current liver condition related to the positive laboratory finding. The December 2011 VA examiner stated that the positive finding has no bearing on the Veteran's current liver condition, and that the current liver condition is related to alcohol abuse and obesity, not to service.
To the extent that the Veteran himself believes that his fatty liver is related to service, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Accordingly, his opinion as to the diagnosis and etiology of his claimed liver disability is not competent medical evidence, as such questions require medical expertise to determine. See Jandreau, supra. Here, the most probative medical evidence demonstrates that the Veteran's current fatty liver is not related to service. Such evidence is of greater probative value than the Veteran's lay contentions.
Based on the foregoing, the Veteran's claim of entitlement to service connection for a liver disorder must be denied.
The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted.
ORDER
Entitlement to service connection for a heart murmur is denied.
Entitlement to service connection for a liver disorder is denied.
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs